New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 229802

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: September 20, 2022

October 27, 2022

November 28, 2022

February 8, 2023

March 14, 2023

April 24, 2023

May 18, 2023

June 13, 2023

Actual Record Close Date: August 1, 2023

Hearing Officer: Maria R. Dispenza, Esq./IHO

NAMES AND TITLES OF PERSONS WHO APPEARED

September 20, 2022

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

October 27, 2022

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

November 28, 2022

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

February 8, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

March 14, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

April 24, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

May 18, 2023

For the Student:

REDACTED

For the Department of Education:

REDACTED, DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

June 13, 2023

For the Student:

REDACTED

REDACTED, Parent/Mother REDACTED, REDACTED Director

For the Department of Education:

REDACTED, DOE Consultant Representative

INTRODUCTION

On August 16, 2022 I was appointed by the New York City Department of Education (DOE) to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of REDACTED (REDACTED) for the 2020/21, 2021/22 and 2022/23 school year. The Parent requested the hearing by filing an impartial hearing request with DOE on or about August 12, 2022 and thereafter amended and accepted by the DOE on or about January 3, 2023. The Due Process Complaint (DPC) is carried under New York City (“NYC”) Case No: 229802. The impartial hearing was held over a series of dates, to complete the record on June 13, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on August 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

The student, REDACTED, has been classified as a student with “Speech or Language Impairment” (Exhibits B-E). He struggles in core academic areas and has a history of inadequate progress and grade retention. Recent IEP indicates that he is functioning well below same-aged peers in reading and math (Exhibits A and B). For the 2020/21 school year, REDACTED was enrolled in kindergarten at REDACTED (Exhibit A). Due to poor progress, he was retained in kindergarten for the 2021/22 school year, attending REDACTED (Exhibit A). Upon entering REDACTED for the 2022/23 school year, he was placed in the second grade due to his age, technically never afforded the opportunity to attend first grade. An IEP dated March 17, 2020 recommended ICT and Speech-Language Therapy (Exhibit E). Subsequent IEPs dated May 12, 2021 (Exhibit D) and November 11, 2021 (Exhibit C) recommended ICT and SETSS. The September 9, 2022 IEP is the most recently developed, recommending an ICT with SETSS and Speech-Language Therapy (Exhibit B).

On or about August 8, 2022 and then again on or about June 2, 2023, out of concern for REDACTED ’s lack of progress, the Parent took him to the REDACTED (REDACTED) for testing to assess his academic deficits and areas of need. REDACTED testing confirmed REDACTED struggling and significantly behind his same-aged peers in core academic areas. REDACTED testing indicated that REDACTED has significant skill gaps in his reading, writing, and math abilities. REDACTED alleges having developed a program of curriculum and tutoring hours designed to remediate REDACTED's specific academic deficits and thereby enable him to achieve meaningful academic progress going forward. Parent alleges REDACTED's learning problems have been evident for years as he consistently exhibited learning difficulties in school and has failed to adequately progress academically. The Parent is seeking an order for the payment of tutoring hours pursuant to this program at REDACTED as part of this hearing, alleging the DOE failed to offer a FAPE for the 2020/21, 2021/22, and 2022/23 school years. Via the DPC, parents seek (1). an order that REDACTED be provided additional services in the amount of 613 hours of 1:1 tutoring (initially having requested 521 hours but since having REDACTED undergo additional testing and having recognized the academic gap having widened since initial testing (T @ 57-58and 59-61)) which shall be scheduled at parent’s discretion with no expiration date provided by REDACTED at a rate of $110.00 per hour; (2). an order directing the DOE to pay REDACTED $295.00 for the cost of diagnostic testing and $100.00 for REDACTED’s standard registration fee; (3). transportation to and from REDACTED in the form of Metro Cards for the student and parent; (4). compensatory services for the failure to provide IEP mandated related services &/or for the failure to provide in-person instruction and related services during the COVID-19 crisis; (5). an order directing the DOE to fund an independent neuropsychological evaluation by a provider of Parent’s choice at the provider’s ordinary rate; and (6). an order that REDACTED be provided with an appropriate IEP that addresses the above-noted concerns, incorporates the recommendations of the requested evaluation, and, at a minimum, provides for increased supports and services.

DOE CASE

At the hearing, the DOE’s representative represented it would not be presenting documentary or evidence or witness testimony to overcome its burden of proof and would be limiting its presentation in the matter to the cross-examination of parent witnesses in an effort to determine whether the Prong II standard has been met and a need for the requested services as put forth by REDACTED has been shown (T @ 47 and 51). DOE waived a closing statement (T @ 75).

PARENT CASE

The parent alleges that the DOE failed to offer REDACTED a FAPE for the 2020/21, 2021/22 and 2022/23 school years and that in the matter at hand bears the burden of production and persuasion on all matters including awards for compensatory services. The parent alleges that REDACTED has struggled and continues to struggle in core academic areas and has a history of inadequate progress in school and that his learning challenges have been evident for years (Exhibit A). His most recent IEP recognizes he functions well below same-aged peers in reading and math. Parent alleges that the CSE failed for years to account for and respond to REDACTED's lack of adequate progress, failed to appropriately individualize and modify his placement and program recommendations, and failed to provide adequate specially designed instruction. In sum, the DOE failed to address REDACTED's needs in a meaningful fashion by failing to provide services and instruction reasonably calculated to provide educational benefit and that the failure to provide him with sufficient supports and services to enable him to make meaningful progress has denied him a FAPE for all school years at hand. Further, the parents contend the IEPs developed by the DOE’s CSE for the school years at hand were substantively deficient such that they denied REDACTED a FAPE for the 2020/21, 2021/22 and 2022/23 school years. Their present levels of performance sections fail to describe REDACTED’s then-current needs, academic deficits, or abilities in any meaningful detail. The goals in the IEPs were not designed to effectively address REDACTED’s needs, were not measurable, were too vaguely stated to meet the requirements set forth in state and federal regulations, and did not contain sufficient specificity by which to guide instruction and intervention, evaluate progress, or gauge the need for continuation or revision. Moreso, the DOE has failed to consistently provide mandated related services during the school years at issue and has failed to evaluate REDACTED in all suspected areas of disability (Exhibit A). Parent presents REDACTED requires and is entitled to compensatory services to address this failure to provide a FAPE. REDACTED testing in an effort to assess his academic deficits and areas of need confirmed that REDACTED is struggling and that he is significantly behind his same-aged peers in core academic areas. REDACTED testing indicated that REDACTED has significant skill gaps in reading, writing, and math. Parents contend REDACTED has developed a program of curriculum and tutoring hours (613 hours of 1:1 tutoring) designed to remediate REDACTED’s specific academic deficits and thereby enable him to achieve meaningful academic progress going forward.

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child.

The case at hand is not a tuition reimbursement. The parents are seeking compensatory education in the form of 613 hours of 1:1 tutoring.

Claim of FAPE denial:

A FAPE begins with an IEP developed by its CSE through the IDEA’s procedures that is “reasonably calculated” to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist. , 427 F. 186, 192 (2d Cir 2005). The DOE bears the burden of establishing the appropriateness of its recommendations.

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and determine the type of program required for the child. Herein, the DOE presented it would not be defending its burden of proof and therefore no further analysis is required as a FAPE denial is deemed conceded.

Equitable Considerations -are there any equitable factors which mitigate against the parents right to recovery

In weighing the equities, “the critical consideration, as the Court sees it, is whether the parents have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. The DOE did not raise any equity considerations and there is nothing in the record to show that the parents were anything other than cooperative with the DOE. The record does not reflect anything to bar or mitigate the requested relief.

Compensatory Education

The IDEA allows a hearing officer to fashion an appropriate remedy. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. Conn. Oct. 9, 2008). The Second Circuit has held that compensatory education is an available option under the IDEA to make up for denial of a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111(affirming compensatory education award for elementary school student and citing Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990)); See also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir.

2005).

As set forth by the Second Circuit in Doe v. East Lyme Bd. of Educ.:

In any action brought under the IDEA, the court "shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). …… "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing." Carter, 510 U.S. at 16 (citation and internal quotation marks omitted). An award of damages is not available, Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002); but a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies, Burlington, 471 U.S. at 369; Polera, 288 F.3d at 486. 790 F.3d 440,454 (2d Cir., 2015) (emphasis added).

The Second Circuit in Doe v. East Lyme Bd. of Educ., adopts the following standard: "[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." 790 F.3d at 457 (citing Reid, 401 F.3d 516 (D.C. Cir. 2005); see also M.W. v. N.Y. City Dep't of Educ., 2015 U.S. Dist. LEXIS 112832 (S.D.N.Y. Aug. 25, 2015). The Second Circuit concluded, "Whatever its precise form, the remedy must be 'appropriate in light of the purpose of the Act.'" E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting School Committee of Burlington v. Department of Education, 471 U.S. 359, (1985)); see also Burr by Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir. 1988) ("If, in this case, we do not allow an award of compensatory education, then [the student's] right to an education between the ages of three and twenty-one is illusory").

The purpose of compensatory education is to make up for failure to provide appropriate educational services in the past. An award of compensatory education is an equitable remedy that should “aim to place disabled children in the same position they would have occupied but for the school districts violation of the IDEA.” Reid, 401 F.3d at 518. Such an award serves "to compensate a student who was actually educated under an inadequate IEP" and "to catch-up the student to where he should have been absent the denial of a FAPE." Brennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 265 (D. Conn. 2008). More specifically, “[c]ompensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed and educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.” Reid, 401 F.3d at 523 (citing G v. Fort Bragg Dependent Schs., 343 F.3d 295 (4th Cir., 2003).

“Whereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more--they must compensate.” Reid, 401 F.3d at 518. In fashioning this relief, compensatory awards will produce different results in different cases depending on the child's individual needs. Some students may need extended programs, perhaps even exceeding hourfor-hour replacement of time spent without FAPE. Others may require only short, intensive compensatory programs targeted at specific problems or deficiencies. Reid, 401 F.3d at 518.

Herein, the DOE limited the presentation of its case to the cross-examination of parent witnesses. However, same neither had the DOE meet its burden of proof nor generated a material challenge to Parent assertions. Contrarily, the evidence and testimony presented by parents supports a finding for parent’s requested relief. REDACTED credibly attested that based upon the totality of testing conducted on REDACTED she professionally assessed his independent level in both verbal and math to be at kindergarten level (Exhibit M). During her cross-examination, REDACTED provided detailed testimony as to the testing conducted and the manner in which she professionally determined the 613 hours of individualized tutoring REDACTED requires to be equipped him with what he needs to work independently at grade level (T @ 63-67).

Further, REDACTED testified that REDACTED was denied his mandated Speech Language Therapy for an entire year as the DOE failed to have a provider available and that upon requesting a makeup of said services during an IEP meeting was denied said request (Exhibit I and T @ 71-72). Her testimony was uncontroverted and the DOE representative voiced no objection at the hearing.

It is well established that the DOE is required to provide an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F. 3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F. 3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F. 3d at 379; Walczak, 142 F. 3d at 132). I find that awarding the 613 hours over a two year time period, will provide the educational benefits that likely would have accrued from special education services that the DOE should have supplied in the first place. Reid v. District of Columbia, 401 F. 3d 516, 524 (D.C. Cir.2005). Transportation:

The parent testified that she will need transportation to transport the student to and from REDACTED in the form of Metro Cards for both student and parent. The DOE representative voiced no objection to the request for transportation. As such, I will grant parent’s request.

Based upon the aforementioned, it is ORDERED:

1. The DOE deprived the student a FAPE for the 2020/21, 2021/22 and 2022/23 school years;

2. The DOE will provide the student compensatory education in the form of 613 hours of 1:1 tutoring to be provided by REDACTED (REDACTED) located at REDACTED located, and prospectively fund same at a rate not to exceed $110.00 per hour. These tutoring hours must be utilized by August 31, 2025. Any unused hours will be deemed forfeited and may not be carried over nor placed in a bank for the student to utilize past the 08/31/25 date;

3. The DOE is to pay REDACTED $295.00 for the cost of diagnostic testing and $100.00 for REDACTED’s standard registration fee; and

4. The DOE is to provide transportation to and from the REDACTED in the form of Metro Cards for the parent and student;

5. The DOE will provide the student compensatory education in the form of a bank of 80 sessions each consisting of 30 minutes on a 1:1 basis of Speech Language Therapy at reasonable market rate. These hours must be utilized by December 31, 2024. Any unused hours will be deemed forfeited and may not be carried over nor placed in a bank for the student to utilize past the 12/31/24 date;

6. It is hereby ordered that upon submission of an invoice, the DOE shall within 30 days of said submission, provide funding and directly pay for the cost of a neuropsychological evaluation of the student. Upon completion of the evaluation, parent shall promptly provide a copy of the neuropsychological evaluation to the DOE; and

7. The CSE shall reconvene within 20 days of receipt of that neuropsychological evaluation to develop an appropriate IEP that incorporates the recommendation of the evaluation and at a minimum provide the student with increased supports and services.

Dated: August 10, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 13, 2023

A. Parent: Impartial Hearing Request, 12/20/22 -7pp

B. IEP, 09/09/22 -21pp

C. IEP,11/22/21 -21pp

D. IEP, 05/12/21 -17pp

E. IEP, 03/17/20 -21pp

F. REDACTED Student Academic Evaluation Results, 08/08/22 -2p G. REDACTED Individualized Prescribed Hours, 08/08/22 -3pp H. REDACTED Student Test Results, 08/08/22 -33pp

PARENT

I. Affidavit: REDACTED, 05/23/23 -7pp

J. REDACTED Student Academic Evaluation Results, 06/02/23 -3pp K. REDACTED Individualized Prescribed Hours, 06/02/23 -3pp L. REDACTED Test Results, 06/02/23 -34pp

M. Provider Affidavit: REDACTED, 06/06/23 -14pp